The Law Handbook 2024

642 Section 6: Houses, communities and the road Under section 25 of the ACL&FTA, when a purchaser rescinds a sale under section 24, the purchaser must return the goods to the seller. The seller must return the money paid by the purchaser. The purchaser is liable for any damage caused to the car by wilful or negligent action. Note that under the ACL&FTA (s 27), a seller is liable for the representations and warranties of their agents and representatives. In addition, section 84A of the MCT Act prohibits a person from giving information or making a statement that is false or misleading in relation to any document required by the MCT Act, by either including false or misleading matter or omitting material matter (penalty: 50 pu). If you are claiming that a seller has made a misrepresentation, it may also be possible to claim that the seller has breached the ACL. The ACL defines and prohibits: • misleading or deceptive conduct (ss 18, 19); • false representations (s 29); • unconscionable conduct (ss 20–22); • unfair terms (ss 23–28); and • misleading conduct in relation to the nature, manufacturing process, characteristics, suitability for their purpose or quantity of goods (s 32). The ACL&FTA allows purchasers to bring proceedings in VCAT for breaches of the ACL. Sections 103 to 106 deal with the conciliation of, and instituting or defending proceedings in relation to, disputes about the supply of goods, by Consumer Affairs Victoria. Sections 107 to 113 deal with the determination of fair trading disputes by VCAT in relation to a supply of goods. Sections 108 and 109 set out VCAT’s powers, which include making orders to pay money to the purchaser, or to cancel or vary a contract. Section 158 sets out the orders a court may make in proceedings for contravention of the ACL&FTA to compensate for loss or damage suffered. These include orders to pay money to the purchaser or to declare void or vary a contract or collateral agreement (e.g. a finance contract). Section 159 allows purchasers to bring proceedings in a court or VCAT for loss or damage caused by a breach of the ACL&FTA. Section 160 gives a court the power to award compensation for humiliation or distress suffered as a result of conduct constituting an offence under the ACL&FTA. When claiming that a seller has made a mis­ representation or engaged in unconscionable conduct, you should add these grounds to the rescission letter (see the sample letter to rescind a car sale contract in appendix C at the end of this chapter). For further information on these issues, see Chapter 7.2: Consumer protection laws. 6 Waiver and estoppel If party A, by their conduct: • leads party B to believe that the rights arising under the contract will not be strictly insisted upon; and • intends that party B should act on that belief, and party B acts on the belief, then party A is not allowed to insist afterwards on the strict legal rights under the contract, when it would be unfair to do so. Party A has ‘waived’ their rights and is ‘estopped’ from asserting them. A waiver of rights may lead to a car trader losing their rights to insist that a purchaser is bound by a car sale contract. In a dispute with a car trader, there are often oral waivers of rights under the original contract. A common example is that the purchaser is allowed to exchange the car in dispute for another car. Other representations at or soon after the signing of the agreement (e.g. that the contract is not binding, or that the purchaser can get their money back if dissatisfied) may constitute a waiver. In these cases, the purchaser could argue that the car trader has waived the right to enforce the agreement and that the agreement is therefore at an end. Proving an oral waiver can be difficult. Even if the waiver is proved, the car trader may be able to enforce the contract subject to the waiver (i.e. the waiver may only amend the contract, not cancel it). 7 Withdrawal of offer A contract is not made until the purchaser receives notice of the seller’s acceptance of the offer to purchase. The purchaser can withdraw their offer at any time before the seller accepts. (For more information, see ‘1 Offer and acceptance’ in Chapter 7.1: How contract law works.) 8 Delivery is delayed New cars If the time for delivery of a new car is an essential term of the car sale contract (i.e. a condition of the contract